15 N.Y.S. 29 | N.Y. Sup. Ct. | 1891
The .objection that certiorari will not lie to review the or■der in question is not well taken. The order is not a “determination which •can be adequately reviewed by an appeal to a court or to some other body or •officer.” Code Civil Proc. § 2122. The order is not one “made by a Court of record * * * or a judge thereof, in a special proceeding instituted in that court, or before a judge thereof, pursuant to a special statutory provision,” nor “instituted before another judge, and transferred to or continued before the judge who made the final order,”.(Id. § 1357;) and therefore an appeal cannot be taken therefrom. In proceedings of this character the ■county judge acts, not as a judge of any court, but as an officer, specially designated by statute, under his title of office. Besides, the proceeding is not instituted before him, or before any other judge, but before a commissioner ■or commissioners of highways of the proper town or towns. The writ of ■certiorari was therefore properly issued in this case, “to review the determination'of * * * an officer,” (Id. § 2120,) in a case “where the writ may "be issued at common law by a court of general jurisdiction, and the right to ■the writ * * * is not expressly taken away by statute,” (Id. subdiv. 2.) By the return of the county judge to the writ of certiorari it appears that the proceeding was instituted by the separate application of a resident of each of -the towns of Groveland and West Sparta, liable to be assessed for highway labor therein, addressed to the commissioner of highways of each of those towns, respectively, for the laying out of a new highway. The description ■of the proposed new highway was the same in both applications, and was as follows: “To commence upon the easterly side of the now present highway leading from Dansviile to Mt. Morris, at a point upon the town line between -■toe said town and the town of [in the one case Groveland, in the other West .Sparta;] thence easterly upon said town line to McNair’s station.” It further appears from the return that the commissioners of the towns of Grove-land and West Sparta, respectively, united in' a certificate to the county judge •of Livingston county that they were “unable to agree in regard to the open
Another objection to the proceeding is that the description of the proposed road contained in the certificate of disagreement of the two commissioners is inconsistent with that contained in the original application for the laying out of the road, and also with the survey and description contained in the report of the three commissioners. But upon careful comparison the discrepancy will not be found to be essential. The description in the application began at the west end of the proposed road, where the Dansville and Mt. Morris road crosses the town line; and ran east on that line to McNair’s station. The description in the certificate of disagreement began at the east end of the road, at the railroad station, which we understand to be McNair’s, and ran west along the town line to a point in the same Dansville and Mt. Morris road, near ICyserville. The only discrepancy between the two descriptions is that in the latter the western terminus of the road is described as being near ICyserville. The terminus is necessarily the same, because it is at the point of intersection of the town line with the well-known highway mentioned. It seems that in point of fact ICyserville is nearly a mile south and east of that point. The mistake seems not to have been in the location of the terminus of the road, hut in the location of ICyserville, which we are told is a collection of not more than two or three houses. The case is clearly one where course and distance must prevail over monuments, or, rather, perhaps, where one monument must prevail over another; for here the course westerly along the town line between Groveland and West Sparta to the intersection"of that line witii the Dansville and Mt. Morris road is absolutely definite, and not to be misunderstood because the point thus reached is erroneously described as being near another point from which it is in fact nearly a mile distant. The authorities are abundant wbieh justify the disregard of monuments where the mention of them is manifestly inconsistent with the description intended. Baldwin v. Brown, 16 N. Y. 361; Higinbotham v. Stoddard, 72 N. Y. 94. So, also, the course and location of the road adopted by the three commissioners, and described in their report, deviate no further from the previous descriptions than was entirely justified under the statute. 1 Rev. St.
Ho other objection than those considered has been argued before us. The determination of the commissioners and of the county, judge of Livingston county, confirmed, with costs.